Majority
We do not think it necessary to express an opinion upon the construction and effect of the third subsection of section B.V.D. We decide nothing, moreover, as to the relation between the procedure authorized by section 60 and that contemplated by section 53. We have assumed (for the purposes of this judgment only) that a defendant in an action DufCJ. under section 60 can, by a proper and timely proceeding, obtain relief under subsection 2 of section 53 and, if there is a valid disclaimer, that the Court can in such an action take cognizance of that disclaimer; but we decide none of these points.
The application is dismissed with costs.
Judgment of the Court
DUFF C.J.-This appeal concerns three questions stated for the opinion of this Court by the Board of Railway Commissioners. The nature of the proceedings giving rise to the stated case appears in the first three paragraphs of that case, which are these:
1. On October 13, 1933, the municipality of St. Eughne de Guigues applied for a crossing over the Canadian Pacific Railway Company's tracks at Angliers, which is situate within the township of Baby.
2. On March 5, 1934, the Board authorized the construction of this crossing, and by its order no. 50814 reserved its decision in regard to the apportionment of the cost of construction and maintenance. Subsequently, by order no. 51463, of October 25, 1934, the cost of construction and maintenance was ordered to be borne and paid by the Canadian Pacific Railway Company.
3. On December 17, 1934, the Canadian Pacific Railway Company applied under section 51 of the Railway Act for a re-hearing of the application, and on the re-hearing, which was first refused and subsequently granted, both parties submitted additional evidence, and the case was re-argued by all parties interested.
The Board of Railway Commissioners has authority under section 259 to apportion the cost of works constructed pursuant to the authority of the Board given upon an application under section 256 for leave to construct a railway crossing on a highway or to construct a highway crossing on a railway. The authority under section 259 is a statutory authority the exercise of which is entrusted to the Board. It seems very clear that this Court has no power, by laying down a rule, nor has the Board itself power, by establishing a practice, to limit the discretion with which the Board is invested by that section (Attorney- General v. Emerson) (1).
It appears that in fact, when such applications are made to the Board, the determining circumstance, under the (1) (1935) 44 Can. Ry. Cas. 84.
(2) (1936) 45 Can. Ry. Cas. 208. (1) (1889) 24 Q.BD. 56.
practice of the Board, in respect of the apportionment of cost, is what is described as " seniority"; by which is meant, apparently, that when the railway is constructed ARERS on land over which the public have a right of passage by virtue of statute, dedication or otherwise, the incidence of the cost of the works necessary to provide a highway cross- CJ. ing over the railway, upon the site over which there existed these rights of passage, falls upon the railway company;
while, if, when the railway was constructed, there were no such rights of passage, the cost of the works is borne by the municipality or other public authority applying for the order.
I do not profess to be stating with accuracy or completeness the practice of the Board; and, indeed, one of the questions submitted to us would seem to indicate that the practice is not so definitely settled as to enable one, with confidence, to sum it up in a precise rule.
It is, perhaps, unnecessary to say that it is no part of the functions of this Court to define that practice. Accordingly, we shall not attempt to do so, and no answer will be given to the third question.
While it is beyond our province authoritatively to define, or even to describe, the practice, still more to enunciate any rule supposed to be evidenced by the practice, yet there is one question upon which we think we may give our opinion with some advantage, and we proceed to do so.
We have come to the conclusion that the title acquired by the railway company under the grant by the province of Quebec designated in the stated case is not subject to any reservation of any highway or any right on the part of the Crown, or any other public authority, to construct a highway in or upon the lands which are the subject of the grant. We are also of the opinion that there is no right reserved to take lands without compensation from the area granted for the construction of highways.
The first two questions submitted are in these words:
reason of the practice which has been followed for many years in the survey of Crown lands in the province of Quebec.
ARE
The meaning of " reservation for highways " is not free "AEs from doubt, but we think that what we have just said constitutes an answer to these questions in substance. Duff CJ.
We do not consider it necessary to determine the effect of the Orders in Council of 1794, upon which the appellant municipality relies; that is to say, we do not think it necessary to determine what effect these Orders in Council had at the time they were passed. Assuming they were legislative in character, and assuming they imposed a legal duty upon the officers of the Crown to include in each patent of Crown lands, of the character contemplated by the Orders in Council, a reservation for the benefit of the public of the right to take land for constructing highways in the premises granted up to the limit of the percentage mentioned, we are still unable to agree that these Orders in Council affect the rights of the railway company arising from the grant now under consideration.
The authority of the legislature of the province of Quebec in respect of the disposition of the Crown lands of that province is indisputable. In St. Catherine Milling Co. v. The Queen (1) Lord Watson said:
By an Imperial statute passed in the year 1840 (3 and 4 Viet., c. 35), the provinces of Ontario and Quebec, then known as Upper and Lower Canada, were united under the name of .the province of Canada, and it was, inter alia, enacted that, in consideration of certain annual payments which Her Majesty had agreed to accept by way of civil list, the produce of all territorial and other revenues at the disposal of the Crown arising in either of the united provinces should be paid into the consolidated fund of the new province. There was no transfer to the province of any legal estate in the Crown lands, which continued to be vested in the Sovereign; but all moneys realized by sales or in any other manner became the property of the province.
In other words, all beneficial interest in such lands within the provincial boundaries belonging to the Queen, and either producing or capable of producing revenue, passed to the province, the title still remaining in the Crown.
His Lordship then discusses the terms of sections 108 and 109 of the British North America Act and proceeds (pp. 57, 58):
The enactments of section 109 are, in the opinion of their Lordships, sufficient to give to each province, subject to the administration and control of its own legislature, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the union were vested in the Crown, with the exception of such lands as the Dominion (1) (1888) 14 App. Cas. 46, at 55.
acquired right to under section 108, or might assume for the purposes specified in section 117.
Before turning to the legislation of Quebec affecting the re disposal of Crown lands, it is convenient to quote some of the recitals of the grant now in question as well as the operative words:
DuffCa. Whereas, under production of new plans supplied by said railway company, it was shown that the lands used by said railway company were not all included in the above Orders in Council;
Whereas said railway company required an absolute deed of ownership on and upon the Crown lands actually occupied by its railway line, in accordance with the plans supplied by said railway company respectively the twentieth day of May, the third day of April, the thirtieth day of April, the twenty-sixth day of June, the ninth day of July and the first day of August, nineteen hundred and thirty, and signed by F. Taylor, Quebec professional engineer, and Malcolm D. Barclay, Quebec land surveyer.
Whereas the railway company further required an absolute title of ownership on the additional lands that will be necessary for the carrying out of its said railway line, as figuring on the above-mentioned plans; Whereas under the above-mentioned Order in Council no. 599, the Minister has been authorized to sign and execute in favour of said railway company, a deed of transfer and conveyance of the rights of property on and upon all said lands. .
Now, therefore, it has been agreed and covenanted as follows, by and between the parties hereto:- For the above purposes, the Minister does hereby by these presents, transfer and convey in full ownership, subject to the reservation clause hereinafter mentioned, unto the railway company, hereto present and accepting, for itself, its successors and assigns the following parcels of land, to wit:- Then follows a description of the lands granted.
It sufficiently appears from this, and, indeed, it is not disputed that, at the date of the grant, the land affected by it was in possession of the railway company, that their railway had been constructed upon it, and that they were occupying it as their right of way. Under section 189 of the Railway Act, by consent of the Governor in Council, a Dominion railway company may take possession of Crown lands for the purposes of its right of way. That section prohibits the company taking possession of, using or occupying any lands vested in the Crown without such consent; and it must be assumed that consent was obtained. It has now been settled by a decision of this Court (Reference re s. 189, Railway Act) (1), affirmed by the Judicial Committee of the Privy Council on appeal (2), that this section embraces the Crown lands of a province. It follows that (1) [19261 S.C.R. 163.
(2) [19261 A.C. 715.
the railway company was lawfully in occupation of these lands as part of the site of its railway at the date of the ANoERS grant, and the grant must be construed, therefore, in relation to that circumstance.
Turning now to the pertinent provisions of the Quebec statutes. Section 24 of chapter 44 (R.S.Q. 1925) is thus expressed:
It was not seriously disputed at bar, and we have no doubt upon the point that, by this section, combined with the provisions of chapter 43, the Lieutenant-Governor in Council is empowered to authorize the Minister of Crown lands for the province to convey to a Dominion railway company lands required by that company for use as its right of way upon such terms and conditions as may be decided upon by the Lieutenant-Governor in Council.
We do not doubt that, in virtue of this power, the Lieutenant-Governor in Council may convey lands in absolute ownership without any reservation of any description in respect of highways. Coming to the grant itself. The grant in our opinion sufficiently evidences an intention that the title of the railway company shall be affected by no reservation in respect of highways.
The answer to the first and second questions is: The title of the railway company to the lands in question is not subject to any reservation in respect of highways. As to the fourth question. It appears from the stated case that in fact a re-hearing was directed.
We have no doubt of the jurisdiction of the Board under section 51 to give such a direction and to proceed with the re-hearing. The fourth question is answered in the affirmative. There will be no order as to costs.
Statutes and regulations cited
-
Unresolved citations
- section 60
- section 53
- section 51 of the Railway Act
- section 259
- section 256
- sections 108
- 109 of the British North America Act
- section 109
- section 108
- section 117
- section 189 of the Railway Act
- s. 189
- Section 24
- section 51